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Tuesday, March 31, 2009

Alabama attorney Rob Riley, who has a curious history of cashing in on the Don Siegelman prosecution, recently announced a $109-million settlement in a fraud lawsuit involving HealthSouth Corporation. But sources tell Legal Schnauzer that Riley himself is involved in a company that faces allegations it practices health-care fraud.

Riley, the son of Alabama governor and former Siegelman opponent Bob Riley, announced that HealthSouth investors had reached a settlement with the accounting firm Ernst & Young. The suit alleged that Ernst & Young failed to detect a fraud that almost destroyed Birmingham-based HealthSouth.

"We think it is a good settlement for the shareholders, many of whom thought they would never see any return on their investment," Riley told The Birmingham News.

Riley is a curious choice to be lead counsel in a lawsuit alleging health-care fraud. That's because, according to our sources, he is an officer in a company that appears to have engaged in health-care fraud--and perhaps still is.

Sources tell Legal Schnauzer that Riley is an owner and officer in a Birmingham-based company that provides physical-therapy services. The company is facing allegations that it has repeatedly defrauded federal health-care programs.

Alice Martin, U.S. attorney for the Northern District of Alabama, has received extensive information about the alleged fraud scheme involving Riley's company, sources say. But Martin, a George W. Bush appointee and a long-time ally of Bob Riley, has refused to intervene in the case.

Riley's connections to the HealthSouth lawsuit first came to light in April 2008, thanks to some expert reporting by Sam Stein, of Huffington Post.

Let's review some of the key points from the Stein article:

* Months before Siegelman was charged, court documents show, Riley knew an indictment was coming and former HealthSouth CEO Richard Scrushy would be drawn into it;

* In what appears to be a case of legal-political "insider trading," Riley managed to maneuver himself into a hugely profitable role as lead local counsel in a massive lawsuit against Scrushy, HealthSouth, Ernst & Young, and others;

* Riley snagged the lead counsel role even though most of his legal experience was in the area of medical malpractice. He had little or no experience in complex securities litigation;

* When the HealthSouth litigation began in 2003, Riley's name was nowhere to be found. He joined the fray in January 2005, representing the New Mexico State Investment Council, a relatively new player in the case;

* Why did Riley rise to play a central role in the HealthSouth lawsuit? Almost certainly it was because of his ties to U.S. District Judge Mark Fuller, whom Riley knew held a grudge against Siegelman and would be the perfect hanging judge in the criminal case;

* Riley surely knew that his ties to Fuller would pay off in the civil case. That apparently happened in May 2006 when an investment banker testifying in the criminal case said HealthSouth had pressured him to come up with $250,000 for Siegelman's education lottery fund;

* Shortly after this revelation in the criminal case, HealthSouth agreed to pay $445 million to settle its portion of the civil case. It was one of the largest settlements in securities-litigation history. And it appears that Rob Riley engineered it.

So what is the current status of the HealthSouth lawsuit? The $109 million payment from Ernst & Young appears to be set. An appeal issue has delayed disbursement of the $445 million from the 2006 settlement involving HealthSouth and several former officers and directors. Riley says a shareholder lawsuit still is pending against Scrushy and investment bank UBS AG.

Let's do a little quick Schnauzer math. At least $554 million is waiting to be dispersed to multiple shareholders and plaintiffs' attorneys. How massive is this litigation? The case file includes almost 1,600 documents, and roughly 150 plaintiffs' lawyers have been involved.

Out of all of these attorneys, representing powerhouse firms from both coasts and some of the most prominent firms in Alabama, who was designated as "liaison counsel for shareholder lead plaintiff"? Whose name was front and center on a motion for settlement filed on March 23, 2009?

Why, none other than Rob Riley, who just happened to have all kinds of connections to the Siegelman/Scrushy criminal case.

Here are a couple of questions to ponder:

* Did any of the 150-plus lawyers who apparently allowed Riley to take a lead position in the HealthSouth lawsuit ever wonder if he might have more than a few conflicts of interest in the case? Were they concerned about the appearance of impropriety caused by Riley's connections to the Siegelman criminal case? Or were they simply interested in the fact that Riley could help rake in big bucks--for them and for himself?

* Did any of these lawyers know--or did they even care--that Riley was an officer in a company that itself appeared to be engaged in health-care fraud? Would any of these 150 plaintiffs' lawyers--or perhaps the numerous defense attorneys--think it relevant that lead counsel in the HealthSouth fraud litigation was himself an apparent actor in a fraud case connected to the delivery of health-care services?

* Aside from alleged fraud committed by Riley's company, consider the conflict Riley appears to have in the HealthSouth case. Riley is an owner in a company that provides rehabilitation services. That's the same area of medicine in which HealthSouth has made its name. If HealthSouth is greatly weakened in the rehabilitation field, do Riley and his business partners stand to profit?

Would some of these multimillion-dollar settlements fall apart if it is shown that Rob Riley has a massive conflict of interest--and is an owner in a company that allegedly engaged in health-care fraud while he purported to be fighting for victims of health-care fraud?

Stay tuned to Legal Schnauzer. We are going to be looking into all of these questions--and providing details about the case against Rob Riley's company.

Barack Obama is not the first U.S. president to inherit a Justice Department that was soiled by his predecessor. Thomas Jefferson faced a similar mess, and he took decisive steps to fix it--reviewing abusive prosecutions, terminating cases, pardoning those who had been wrongfully convicted. A prominent legal-affairs reporter says new attorney general Eric Holder should follow Jefferson's approach.

What kind of Justice Department did Holder inherit? Let's just say it's as if Holder returned home one night to find someone had left the rusting hulk of an automobile, resting on concrete blocks in his backyard.

Is the "old girl" beyond repair? No. But her prognosis is dire. And Holder is going to need lots of grit and elbow grease to get her running again.

Fortunately, Holder can turn to a pretty fair shade-tree mechanic, of the legal sort. Goes by the name of Scott Horton. Writes for Harper's magazine. Works for Columbia University School of Law. Has good rates.

First, Horton notes, Holder is going to need the support of those above him. And President Barack Obama presented encouraging remarks at Holder's installation ceremony last week. A sampling:

And that's what's always distinguished this nation--that we are bound together not by a shared bloodline or allegiance to any one leader or faith or creed, but by an adherence to a set of ideals. That's the core notion of our founding--that ours is a "government of laws, and not men." It is the motto inscribed on the library of my law school alma mater: "Not under man but under God and law."I encourage Schnauzer readers to examine all five of Horton's recommendations for breathing life back into our Justice Department. But here's the one that jumped out at me:

Instigate a thorough review of political prosecutions, overturn prosecutions that were abusive, and take appropriate disciplinary actions with respect to those who instigated them. Following the path of the lowliest authoritarian dictatorships, the Bush Administration used the Justice Department to bring criminal prosecutions against political adversaries for partisan political purposes. That’s no longer debatable. It’s an established fact. Yet the Justice Department has yet to lift a finger to correct these abuses. Victims of the worst of these prosecutions languish in prison, and the prosecutors who disgraced their offices remain on the job—indeed, this weekend I read that one was just promoted in an act of calculated “burrowing.” When Thomas Jefferson came to office following the elections of 1800 he was forced to deal with a situation almost exactly like the one that Holder now faces. He called the two-year terror-spree of political prosecutions by the Federalists the “Reign of Witches.” Jefferson and his attorney general quickly reviewed the abusive prosecutions, terminated cases, and issued pardons to the substantial number of people who had been wrongfully convicted in our still highly imperfect criminal justice system. Eric Holder would do well to study the precedent Jefferson furnished. He needs to take this legacy of abuse of the powers of the Justice Department and confront it directly.This is powerful stuff from Horton. It is a valuable history lesson, showing that our Justice Department has been abused before. Thomas Jefferson took decisive steps to repair the mess he inherited. Horton suggests that Holder make history repeat itself.

I would add one other step: Ensure that those who soiled our Justice Department are held accountable, criminally if that is appropriate. And be sure a civil mechanism is available so that victims have a chance to be made whole.

Is Holder up to the task? Obama, after making a joke about his friend's abilities on the basketball court, said the answer is yes:

Now, I can't vouch for Eric's skills on the basketball court--(laughter)--but I can confirm that he is thoroughly prepared to take on the law enforcement challenges of this new century. As a student of history, he also knows history's lessons about what happens when we let politics and ideology cloud our judgment -- and let fear and anger, rather than reason, dictate our policy. These are mistakes he will not repeat. Because in the end, Eric comes to this job with only one agenda: to do what is right under the law.

Monday, March 30, 2009

Malcolm Portera, chancellor of the University of Alabama System, announced last week that the system is likely to lose at least 1,000 jobs over the next 18 months during the Bush recession.

As a former employee at one of Portera's campuses, the University of Alabama at Birmingham (UAB), this news raised some interesting questions in my mind. In fact, I would suggest that all Alabamians need to ask some pointed questions of the man who leads the three-campus system.

Here are a few questions your dogged Legal Schnauzer has for Portera:

* You say these are lean times for the UA System. So how much money is the system wasting on discrimination lawsuits that could have been avoided? At UAB alone, numerous legal actions recently have been brought by veteran employees--people who have invested 20 to 35 years in the university and clearly do not have histories of being troublesome employees. What has happened under the "leadership" of President Carol Garrison to make UAB unable to manage long-time employees?

* When's the last time you checked into the Office of Counsel at UAB? If my memory is correct, the office answers directly to you, so I assume you are familiar with how it operates. Recent activities indicate you have been "out to lunch" on legal matters, so let me clue you in on how an Office of Counsel should work. Numerous law firms in Alabama focus on defense of employment-related lawsuits. If you check the Web sites for most any of these firms--here's one from Baker Donelson, as an example--you notice that one of their primary services is "litigation avoidance." They offer training and assistance with the development of policies and procedures that are designed to ensure their clients abide by federal laws and, in the process, avoid litigation.

* So why doesn't UAB's Office of Counsel practice litigation avoidance? I possess a document that indicates two members of that office--apparently John Daniel and Lisa Huggins--reviewed my termination letter before it was presented to me by Dale Turnbough, associate vice president for public relations and marketing. Anyone with a few functioning brainwaves in their cranium should have been able to detect about 197 red flags in this letter. But Daniel and Huggins apparently approved it without batting an eye. Do your "legal experts" ever bother to ask questions of supervisors who are making stupid HR decisions? If not, why are they employed at UAB? What purpose do they serve?

* You note that we are experiencing the worst recession in 75 years. But you fail to mention an important fact: This recession, like the Great Depression, was brought on by the actions of a Republican administration. And yet you are a prominent member of the Business Council of Alabama (BCA), which is run by one of Alabama's most prominent Republicans, Bill Canary. In fact, Mr. Canary has well-documented ties to Karl Rove, who has been celebrated as "Bush's Brain" and played a major role in leading our country to the brink of economic collapse. Since you support the very people who led us into this mess, why should Alabamians have any confidence in your ability to lead our flagship university system during times of economic stress--or during any other times, for that matter?

* Jill Simpson, an Alabama attorney and former Republican operative, has testified to Congress, under oath, that Bill Canary helped arrange a bogus prosecution of former Alabama Democratic Governor Don Siegelman. If this is proven to be true, Mr. Canary has committed myriad federal crimes. If Mr. Canary committed these crimes while acting in his role as BCA president, and apparently he did, doesn't that make the BCA a glorified criminal syndicate? Have you considered distancing yourself from such an organization? As the head of Alabama's flagship university system, shouldn't you at least be asking a few hard questions about actions that are taking place in the name of the BCA?

* While we have your attention, let's include one final question: What do you know about my unlawful termination at UAB? Sources tell me that you are one of President Carol Garrison's primary supporters. And news reports indicate you are concerned about people losing jobs in the UA System? So are you concerned about the fact that Carol Garrison signed off on a plan to cheat me out of my job? Have you asked her about it? UAB's own grievance committee found that I should not have been terminated, and evidence at my grievance hearing showed I should not have been disciplined at all, much less terminated. And yet, your gal pal, Carol Garrison, upheld a termination that her own committee found was wrongful. You don't need a Ph.D. to realize that doesn't make much sense. And substantial evidence indicates someone external to UAB pushed the university to fire me, for political reasons having to do with a blog I write on my own time. Do you know who these people are? Are you aware that, if a conspiracy to cheat me out of my job is proven--and it involved use of the U.S. mails or wires--that constitutes a federal crime? Does that concern you in the least?

More importantly, would you be willing to sit down for an interview with me, the Legal Schnauzer, to examine these issues?

The University of Alabama yesterday named Anthony Grant as its new men's basketball coach. Grant, the former coach at Virginia Commonwealth University and a longtime assistant at two-time national champion University of Florida, was generally hailed as an excellent hire.

Davis, the former head coach at Indiana University, has done fairly well on the court at UAB. But he apparently has made it clear to a number of people (including players, would-be players, and fellow coaches) that he does not want to be at UAB for long. That seems to have caused a once-promising recruiting class to fall apart. Three highly regarded prospects who once were headed to UAB--DeMarcus Cousins, Jon Kreft, and Casey Mitchell--now appear to be headed elsewhere.

With just four returning players for next year, and two early signees, UAB will need to sign seven players this spring to fill out its allotted 13 roster spots. That means the next year or two could see some awfully rough seas on the court for UAB.

Meanwhile, Scarbinsky raises this interesting question: Why did Alabama hire Grant instead of former UAB head coach Mike Anderson, who just led the University of Missouri to the Elite Eight of the NCAA Tournament? Anderson, a Birmingham native who enjoyed considerable success on the court at UAB, was a favorite of many Crimson Tide fans and probably would have returned to his home state for the $2 million or so that Alabama is paying Grant.

But Scarbinsky hints that all was not well off the court at UAB under Anderson. And that might be why Alabama turned away from him:

Sources said that at least one influential Alabama trustee had an issue with the academic state of the UAB program Anderson left behind and the off-court problems experienced by some of his Missouri players.It's true that UAB basketball suffered a hit in the NCAA's Academic Progress Rate, in part because of players Anderson brought to campus, but a mid-major like UAB has to take more academic risks in recruiting to compete with the likes of Memphis.It's also true that the UAB administration as a whole didn't take the academic affairs of its athletes as seriously as it should have until the school was embarrassed by its low APR numbers.Published reports indicate that an NCAA investigation, possibly centering on academic fraud, could be brewing at UAB. Scarbinsky seems to be saying that UAB's leadership, with President Carol Garrison at the top, probably is complicit in any academic problems that surface at UAB.

Scarbinsky also includes this interesting nugget:

One source close to UAB said the school's President Carol Garrison is no fan of Anderson's and that she made her feelings known to other officials in the university system.Why would University of Alabama officials listen to Carol Garrison about anything? Abundant evidence indicates Garrison can't manage her own campus, much less one 60 miles down the road. Her tenure at UAB has been marked by one fiasco after another. Her handling of human-resources issues, including my unlawful termination, has been atrocious--so much so that UAB's human resources director recently left for what appears to be a lesser job at Wake Forest.

And a source tells Legal Schnauzer that numerous business leaders in Birmingham are unhappy with Garrison's leadership. We understand that an article on that subject will be appearing soon in a local publication.

One thing is for certain: If academic fraud is found to have occurred in UAB's men's basketball program, it will be most fitting that it is uncovered during the Carol Garrison era. Various forms of fraud have been a hallmark of Garrison's leadership from the earliest days.

It started with reports of Garrison's unseemly dalliance with former University of Tennessee President John Shumaker. It continued with reports of massive research fraud at UAB, in which federal taxpayers were cheated out of hundreds of millions of dollars, according to court documents. It continued with reports of UAB employees using state-owned equipment to send racist and anti-gay e-mails--a clear violation of university policy that resulted in little or no punishment.

And of course, you have the unlawful termination of your humble blogger. On the surface, that appears to raise a number of civil issues--age and gender discrimination, wrongful termination, retaliation, defamation, First Amendment violations, etc.

But it almost certainly raises criminal issues, too. If UAB officials bowed to external pressures and cheated me out of my job--and used the U.S. mails or wires in furtherance of that scheme--it constitutes honest-services fraud. And that's a federal crime.

If Barack Obama appoints a tough U.S. attorney for Birmingham--and that appears to be a mighty big if at this point--that person could have a field day checking into the sleaze that emanates from UAB and the University of Alabama System.

Regardless of what our new U.S. attorney does, we certainly will be investigating UAB sleaze here at Legal Schnauzer. Interesting leads are coming in from readers on an almost daily basis.

Before the smoke clears, problems in men's basketball might be the least of Carol Garrison's worries.

Sunday, March 29, 2009

David Estes recently became the face of the fight against public corruption in Alabama. And that is rich with irony because Estes himself, based on public reports, has corruption oozing from every pore.

That's what happens when Bush-appointed prosecutors are in charge of the federal "justice" apparatus in your state. And two-plus months into the Barack Obama administration, Bushies still rule on the justice front in Alabama.

God only knows how much longer that is going to be the case. We certainly understand that Team Obama arrived with onerous chores on its plate. But the federal justice system is in crisis, in Alabama and elsewhere, and we would respectfully suggest that someone dismiss Bush prosecutors like Alice Martin and Leura Canary pronto.

Martin and Canary are going about their corrupt business as if we had held no election in November. Perhaps someone from Team Obama needs to clue them in--if for no other reason than to ensure people like David Estes can do no more damage.

Who is David Estes? He is an assistant U.S. attorney working for Martin in the Northern District of Alabama. He recently was quoted in the local press as saying the investigation into Alabama two-year colleges, which has focused almost entirely on Democrats, remains in high gear.

Evidence suggests that the two-year system indeed has problems and needs to be cleaned up. But charges of "double dipping" and the like surely cross party lines, though you would never know it from Alice Martin's investigation. And an individual like David Estes has no business looking into someone else's alleged corruption.

That's because Estes himself is nauseatingly corrupt. We know that thanks to the superb reporting of Lynda Edwards, who wrote "The Curious Case of Alex Latifi" a few months back for the ABA Journal.

Latifi is a Huntsville defense contractor whose business was ruined by a bogus federal investigation. Alice Martin and David Estes led the investigation of Latifi and his company, Axion Corp.

Latifi's defense lawyers quote Estes as saying, "We don't care if Latifi is innocent. Our goal is to put him out of business."

That quote should send a chill down the spine of every citizen. And it did send a chill down the spines of Birmingham lawyers Henry Frohsin and James Barger. They filed an ethics complaint with the U.S. Justice Department against Martin and Estes.

Is anyone in the Justice Department taking steps to punish Martin and Estes for their thuggish behavior? Apparently not. Estes now is being touted as the point man for the investigation of Alabama two-year colleges.

This is the same guy who said he didn't care about the facts and the law in a criminal investigation. He just wanted to ruin a man's business, a man who happened to be of Iranian descent and a supporter of the Democratic Party.

Is anyone in the Obama administration paying attention to what is going on in Alabama?

As a devoted basketball player, Obama should be familiar with the phrase that hoopsters around the globe holler when their ball rolls off toward guys on another court:

A three-judge panel of the 11th Circuit upheld the Siegelman and Scrushy convictions on corruption-related charges in U.S. District Court in Montgomery, Alabama. But attorneys for Sieglman and Scrushy argue that trial-judge Mark Fuller did not issue jury instructions that require an explicit "something for something" agreement, and evidence presented to the jury showed that no such agreement existed.

If the three-judge panel's ruling is allowed to stand, Siegelman said, prosecutors will be able to pick and choose their targets among contributors and elected officials. In a written statement, Siegelman said:

The U.S. Supreme Court's ruling in the McCormick case made it clear, that in this area of First Amendment rights, before a jury could convict an elected official or a contributor on bribery, there had to be an "explicit" not an "implied" agreement.My three-judge panel has allowed my conviction and my seven-and-a-half-year sentence to stand basically by defining "explicit" to be something that can be inferred or implied by the jury from the mind and actions of the actors.

The petition for an en banc hearing of the full court, plus an appendix, can be viewed at the following links through Locust Fork News-Journal:* Petition for rehearing

Our understanding is that the government has 21 days to file a response brief. If the full court agrees to hear the case, a date will be set for oral arguments.

Interestingly, the Siegelman appeal focuses almost exclusively on the bribery, quid pro quo issue. My review of the three-judge panel's ruling indicates it made errors in at least three or four other areas.

I'm not an expert on federal appellate procedure, but there must be a reason why the Siegelman team is focusing almost totally on one issue. Perhaps federal rules prohibit the length of briefs and the amount of time for oral argument, so the Siegelman team chose to focus on the central issue in the case. Also, it might be considered bad form in legal circles to point out the multiple ways the three-judge panel screwed up its ruling--and almost certainly did it intentionally.

It's interesting to recall that in oral argument before the three-judge panel, a Siegelman attorney was cut off when he tried to argue on the quid pro quo issue, and the panel asked questions mostly on relatively minor issues. The Siegelman team probably feels the central issue in the case has never been appropriately explored at the appellate level.

In his statement, Siegelman got the core of the issues at stake:

Yes, this is about my personal freedom, but it is even more important that this First Amendment issue be clarified so the law won't be a trap for the unwary. Thomas Jefferson said, “Whenever the people see things that are wrong, the people can be relied upon to set those wrongs to right.” We need to get a message to the U.S.Department of Justice to help get this wrong set right.

If the three-judge panel's new definition changing an "explicit" to an "implied "quid pro quo is allowed to stand, not only am I up the creek without a paddle but federal prosecutors will be able to pick and choose contributors and elected officials seeking convictions based solely on a jury's view of what was in the minds of the elected official, not based on any express communication.

Thursday, March 26, 2009

The U.S. House Judiciary Committee chose to take unsworn testimony from former Bush White House strategist Karl Rove in a private session so that members could have ample time to question him, according to a published report.

But an Alabama attorney and Republican Party whistleblower says Rove's unsworn testimony will be worthless for the purposes of law enforcement.

According to two Judiciary Committee aides, the committee opted for the private testimony so that they could depose Rove for an extended period of time. During a public hearing, each committee member would have only a few minutes to ask questions.“We could question him for 12 hours if we choose to,” said one of the aides. The two aides confirmed that Rove would not be sworn in for his testimony, but they said testimony before Congress is de facto sworn, meaning any false statements could bring perjury charges:

Asked why in that case Congress bothers to swear people in during public hearings, one of the aides quipped, “Because it looks good.”That argument did not sit well with Alabama attorney Jill Simpson, whose sworn testimony about a conference call involving GOP operatives indicated Rove was involved in a plan to bring a bogus prosecution against former Democratic Governor Don Siegelman.

"It is important for Karl Rove to be sworn under oath because others may assert he wasn't, and therefore the testimony isn't admissible in a court of law against them," Simpson says. "Congress is a fool not to swear Mr Rove under oath. I, however, suspect they know exactly why it was agreed he not be sworn."

Simpson has repeatedly pointed a finger of suspicion at Greg Craig, White House Counsel for the Obama administration and a former member of Williams & Connolly, a major Washington, D.C., law firm. Craig represented Rove on a book deal and has been friendly socially with the former Bush advisor, Simpson says. Also, Williams & Connolly represents a number of former Bush administration officials, including President George W. Bush, Vice President Dick Cheney, and Defense Secretary Donald Rumsfeld.

"I am sure that Greg Craig would know that unsworn testimony isn't worth the paper it is written on in a court of law," Simpson says. "Maybe we should hear from Mr Craig, as President Obama's lawyer, and from his former partner (Emmet Flood), who is President Bush's lawyer.

"They are the ones who struck the deal for Karl Rove to testify unsworn. What were they thinking, and why was this done in this fashion? Who are they protecting by taking unsworn testimony from Karl Rove?"

Simpson had one final thought about the ground rules for Rove's testimony:

"Since the aide for the House Judiciary Committee says the oath to tell the truth is for show only, then why don't they, for show, have Karl Rove take the oath? After all, why would he avoid it? If it truly is just for show, then Rove could take the oath, and that would once and for all put this issue behind him."Karl has repeatedly spouted off that he can't wait for the grilling, so why would he not agree to testify under oath? That way, there would be no question about his testimony."

Wednesday, March 25, 2009

The video notes that former Alabama Governor Don Siegelman is at the center of the best known political prosecution under the George W. Bush Justice Department. But it spotlights numerous lesser-known Democratic officials who were targeted on criminal charges that appear to be flimsy or not based on the law.

Since writing our post yesterday, we have learned more about The Political Prosecutions of Karl Rove. And it is good news for folks who hope to see the appropriate people held accountable for turning the Department of Justice into a political weapon.

First, The Political Prosecutions of Karl Rove is not just a series of YouTube clips. It is a full-length documentary that is available in a video format and can be downloaded on the Web. The complete documentary is only 22 minutes long, so it packs a lot of vital information into a relatively small package.

Second, the documentary is a first-class piece of work. From watching the YouTube clips, it's easy to tell this wasn't put together by some schlub with a Web cam. You can tell this was artfully done, and there is a reason for that. The documentary was put together by John McTiernan, whose directing credits include Die Hard, Predator, and The Hunt for Red October, along with a number of other Hollywood blockbusters.

McTiernan has firsthand experience with the justice system through the Anthony Pellicano case, and that might help explain his interest in the Bush DOJ.

I believe the documentary will be available soon in a video format through Project Save Justice. We will keep you posted here at Legal Schnauzer.

Still, it's a rarity for a national news outlet to examine the subject. But such a rarity surfaced recently when Dahlia Lithwick, legal affairs contributor for Newsweek and Slate, wrote "When Judges Behave Badly."

Lithwick reports that the first few months of 2009 have been a dark, and most revealing, time for judges. She spotlights:

* The federal judge in Texas who pleaded guilty to obstruction-of-justice charges in exchange for the state dropping sex-crimes charges;

* The Texas appellate judge who was charged with five counts of violating her duty and discrediting the court;

* The West Virginia judge who refused to remove himself from a case even though he had benefitted from $3 million worth of campaign spending from one of the parties;

* U.S. Supreme Court Justice John Roberts, who is set to hear a case involving the pharmaceutical company Wyeth, which plans to merge with Pfizer--and Roberts owns stock in Pfizer.

Lithwick doesn't even mention the ugliest case of all: Two Pennsylvania judges have pleaded guilty to accepting $2.6 million in kickbacks for sending juveniles to private detention facilities.

While Lithwick raises important issues, she tends to focus on cases where judges have potential conflicts or exhibit poor behavior outside the courtroom. She largely leaves untouched the issues of judges who intentionally and knowingly cheat parties before them.

Efforts to control the judiciary often run afoul of the ideal of judicial independence. Whenever the public attempts to tell judges or justices how to monitor their conduct, they run headlong into the argument that judges warrant special deference because what they do transcends politics and public opinion.

It's not a matter of "controlling" the judiciary. But judges clearly need to be answerable to someone. Accountability is grossly lacking in our justice system, and Lithwick seems to know it. But in the end, she wimps out:

The problem is that mixed in with legitimate grievances about judges, there are often many sore losers or litigants who didn't get what they wanted.

Judges are not gods. But we must be honest enough to admit that what looks like bias and corruption to us might just be a fallible human being doing her job. If we create too many systems that monitor the judiciary, we are really saying that we trust their judgment only when they agree with us. We need to separate the real problems of policing the judiciary from the generalized griping that they are old or elitist or out of touch. And in the end . . . we must trust the judges to judge, or do away with the institution altogether.Where does Lithwick's analysis go off the tracks? It's with this phrase: "What looks like bias and corruption to us might just be a fallible human being doing her job."

Lithwick appears to be talking about discretionary matters, where a judge has the right to make what he believes is the best decision under the circumstances before him. Those kinds of decisions will always be with us, and we will sometimes disagree about them.

But our courts are riddled with judges who intentionally cheat parties on non-discretionary matters. We have judges who knowingly ignore black-letter law in order to favor a particular party.

We've seen it in the Don Siegelman case in Alabama. We've seen it in the Paul Minor case in Mississippi. I've seen it in my own Legal Schnauzer case.

Lithwick fails to mention that the case of Samuel Kent, the federal judge in Texas who first got into hot water over sex-related charges, wound up involving charges of favoritism. Jonathan Turley reports that the Kent investigation included charges that the judge favored certain attorneys over others.

And Sharon Keller, the Texas appellate judge who was charged with violating her duty, habitually favored prosecutors over defendants, essentially substituting her own opinions for the actual law--frightening stuff indeed.

Judges are like teenagers who have been given privileges and freedoms they obviously cannot handle. We are the parents who need to take back the car keys and lay down some serious ground rules. Instead, we are like parents who have checked out emotionally and allowed all hell to break out in the courthouses around us.

I applaud Lithwick for at least bringing up a subject that too often remains stuffed in our collective closet. But in the end, she doesn't treat the problem with the seriousness that it deserves, and she offers no real solutions.

Tuesday, March 24, 2009

When commentators call for investigations of possible wrongdoing by members of the Bush administration, the discussions usually have an international focus. Subjects such as torture, illegal detentions, and spying tend to carry the day.

But a recent Gallup poll shows Americans are concerned more with domestic wrongdoing, such as politicization of the Justice Department, than with international issues. The poll showed that 71 percent of respondents favored a criminal investigation or independent probe of possible attempts to use the Justice Department for political purposes. By contrast, 62 percent favored investigations into torture and 63 percent on warrantless wiretaps.

While national opinionmakers tend to focus on war crimes, folks in the heartland seem to be more concerned about the notion that Bush officials have prosecuted and imprisoned people for political reasons, not because they committed crimes.

And so we take time here at Legal Schnauzer to send this vital message: We must not forget our political prisoners. And we must take all necessary steps under the law to see that they are vindicated--and that the appropriate people are held accountable for their suffering.

I can think of no better way to remember the victims of the Bush "justice" system than to spotlight a recent three-part documentary produced by Project Save Justice. It is titled "The Political Prosecutions of Karl Rove," and it is compelling viewing. My hope is that every American, in one forum or another, will see it and be moved to action.

The documentary opens by noting that many Americans have heard about the apparent political prosecution of former Alabama Governor Don Siegelman. But most Americans do not know that the U.S. House Judiciary Committee has received information about roughly 1,000 questionable prosecutions. And of the 700 investigations conducted by the Bush Justice Department since 2001, about 87 percent targeted Democrats. Here is Part I of "The Political Prosecutions of Karl Rove:"

Part II focuses on the methods used by the Bush DOJ, noting the critical role played by Republican-appointed judges and compliant mainstream news outlets. It also notes that supporters of Democratic presidential candidates Hillary Clinton and John Edwards were frequent targets. One Edwards supporter, Michigan attorney Geoffrey Fieger, notes that his office was raided by 100 FBI agents. "You could rob a bank and murder someone and get maybe two or three agents on your tail," Fieger says. The raid on his office, he says, was "unprecedented in American history." Part II also spotlights the Paul Minor case in Mississippi and includes compelling interviews with former state Supreme Court justice Oliver Diaz and Myrna Teel, wife of imprisoned former state judge Wes Teel. "Wes was told, 'You resign and never run for public office again or you will be indicted,'" Myrna Teel says:

Part III focuses on the payoffs for the Republican officials who went along with political prosecutions. Many were rewarded with high-paying positions in the private sector or lifetime appointments in government posts. What about the victims of these prosecutions? The documentary concludes with a lengthy scroll, including their names, positions, and home areas--plus the charges they faced. Many of the victims or their loved ones wound up in financial ruin. Suicides, or deaths from natural causes to those under 70, have been common. "This is not the system of justice I fought for in World War II," says Bill Minor, father of Paul Minor. "This is not the system of justice that Paul fought for in Vietnam."

Who are the victims? Here are just a few of them. If you are like me, you probably are hearing many of these names for the first time:

Experience has taught me that some lawyers will, in private, admit that our justice system is a mess. Some, in hushed tones, will even tell you about specific lawyers they know to be shysters and judges they know to be corrupt.

But a lawyer criticize the system in a public forum? That's real man bites dog stuff.

I'm guessing there are several reasons for that. One, most lawyers make a far better living in the legal profession than they would make in another field of endeavor--say, journalism. Two, angry judges can take quite a toll on a lawyer and his clients in the courtroom--over time that can cause the bottom line of a law practice to take a serious hit. And three, I suspect state bar associations have interesting ways of making life miserable for a lawyer who dares to publicly pull the mask off the legal beast.

So there are many factors that discourage lawyers from rocking the professional boat. But Julian McPhillips, a prominent attorney in Montgomery, Alabama, was so disgusted by the ruling on the Siegelman/Scrushy appeal that he decided to rock the boat anyway--at least a little bit.

Some might say that McPhillips is not an objective observer in this case. He is a longtime Democrat, running for the U.S. Senate in 2002, and he has represented Richard Scrushy. But McPhillips makes a number of compelling points about the ruling from the U.S. 11th Circuit Court of Appeals. In the end, he actually goes easy on the court.

To say the court split hairs, bent over backward to reach ill-founded conclusions and ignored important issues is a vast understatement.

The court also established a bad precedent in glossing over out-of-court juror e-mails, which revealed great bias of the jurors involved. The trial court dismissed these e-mails without investigation, and the 11th Circuit ignored this oversight.
McPhillips says the appellate court got it wrong on the central issue in the Siegelman case: Was there an explicit quid pro quo, a something-for-something agreement, as required by law?

The 11th Circuit also split hairs in distinguishing the difference between "explicit" and "express" on the quid pro quo issue. That is, was there enough evidence of "you scratch my back and I'll scratch yours?" The court said there was sufficient circumstantial evidence, primarily the contribution itself.

Yet, it is undisputed that former Siegelman aide Nick Bailey, a government witness, never witnessed a single conversation between Siegelman and Scrushy indicating agreement for a Certificate of Need Board seat in return for a lottery fund contribution. Remember, also, the goal of the lottery was to promote public education, not the election of Siegelman.

Even the 11th Circuit was strained, bending over backward, to explain the difference between the alleged Siegelman-Scrushy bribery and the widespread practice of a politician doing a favor for a contributor.

McPhillips points out that neither Siegelman nor Scrushy were newbies to the area of political contributions. So it's hard to figure why either would knowingly violate the law:It is significant that Siegelman was a former Alabama secretary of state, attorney general, lieutenant governor and governor. He was no bumbling novice. Through his 20 years of government service, he learned well the parameters of permissible behavior. He knew well what was kosher in the murky field of contributions and appointments. Neither Siegelman nor Scrushy possessed the most remote idea that what they were doing was illegal--or that what they were convicted of was illegal.

Who is the biggest loser from the 11th Circuit's warped reasoning? McPhillips has some disquieting thoughts on that subject:Sadly, the biggest casualty resulting from this conviction and affirmation by the 11th Circuit is the Alabama and national political system. In the past, children yearned to be governor of a state or president of the United States. College-age students found excitement in the political process and saw political power as a means to achieve worthy results, such as improved education for all students, regardless of station in life.Today, with this conviction and affirmation, few people with sense would want to be governor, recognizing that, while politics is the vehicle for election, politics also makes you a target for prosecution for campaign contributions you receive. The bigger you are politically, the more you are "big game." Regrettably, but undoubtedly, our judicial and political systems are broken.

John Schwartz, of The New York Times, reports that this has led to mistrials in a number of high-profile cases, where jurors used cell phones, BlackBerrys and the like to conduct research. This directly violated judges' instructions and led to what legal experts are calling "Google mistrials."

The issue hits home here in Alabama for a couple of reasons: One, the issue of jurors improperly using e-mail was raised in the prosecution of former Alabama Governor Don Siegelman. Two, the problem has become widespread--with recent examples in Florida, Arkansas, and Pennsylvania--and that makes me think many jurors might no longer trust the justice system.

Under the law, jurors are not supposed to seek information outside of the courtroom. They are required to reach a verdict based only on the facts the judge has decided are admissible. And they are supposed to base their decisions on the law as the judge presents it to them.

In other words, they are supposed to view the facts and the law through the prism formed by the judge. But jurors increasingly are ignoring admonitions about outside influences.

So what is going on? It's possible that increasing numbers of Americans are thoughtless clods who can't follow simple instructions. It's also possible that increasing numbers of Americans are so addicted to their gadgets that they simply cannot leave them alone, even while on jury duty. (Memo to courtroom managers: The problem easily can be solved by making sure that jurors turn in their gadgets for safe keeping throughout trials.)

Here at Legal Schnauzer, we suspect something else might be going on. When regular Americans get an up-close look at our justice system, they are likely to sense that it is deeply flawed in many cases and downright corrupt in some.

I know from firsthand experience, that it doesn't take exceptional powers of perception to see that something is amiss in many courthouses. Just consider the criminal-trespass case involving our neighbor, which led to him filing a bogus malicious-prosecution lawsuit against me. And that led to the legal sojourn that is at the heart of this blog.

After only one or two trips to the local courthouse, Mrs. Schnauzer and I began to suspect something was up. It took us a while to figure out exactly what was going on. But we had a sense early on that: (A) The judge wasn't following the law; (B) The prosecutor who was supposed to be representing our interests was utterly unprepared; (C) The opposing lawyer seemed to have unusual influence over, and access to, court personnel; and (D) The opposing party appeared to have no problem lying under oath so that he could get off for a crime that he later confessed to committing. (We later discovered that the opposing party had been convicted for numerous crimes before, so he knew how the system worked. And he probably had little regard for the notion that people are supposed to tell the truth when under oath.)

My guess is that many jurors, after spending several days or weeks getting an up-close view of our justice system, begin to smell something foul about the whole process. They probably don't trust lawyers from one side or the other (or both). They probably sense that some witnesses are blowing copious amounts of smoke. And most alarming of all, they probably think the judge is incompetent, crooked, or both.

The original New York Times report on this subject portrayed it as an alarming development, a sign that rogue jurors are sullying our sacrosanct and honorable "justice" system.

I think it might actually be a positive sign. I think many jurors are saying, "Good God, this whole system is a mess, and it's led by judges who don't appear to be trustworthy. I'm going to use the technology at my disposal to try to see that justice is done."

Perhaps I'm giving these jurors more credit than they deserve. But I think some of them realize that they are the only persons in the whole process, aside from wronged parties, who actually care about justice being served.

If my experience is any guide, those jurors are probably right on target.

Scott Horton, of Harper's magazine, has a suggestion for the feds should they decide to take a serious look at Alabama:

When they’re finished looking at the mobilization of two U.S. attorneys to deal with an intra-Republican feud, we have some other matters that require their urgent attention: the Siegelman prosecution itself, for instance.

Horton notes that the grand-jury investigation of King seems to be focusing partially on gambling. That's interesting because King has parted ways recently with Riley on gambling-related issues. And, as we've noted several times here at Legal Schnauzer, Riley and his associates are up to their hypocritical necks in conflicts regarding gambling.

Our guess is that Leura Canary is involved only as a smokescreen. Her office in the Middle District of Alabama reportedly has recused itself on matters regarding King, leading Alice Martin and the Northern District to take the lead.

This leads us to believe that the King investigation is all about Martin's career path--or rather lack of one now that Democrats are in charge of the Justice Department, meaning Queen Alice is about to be sent packing.

Regular readers know that we enjoy dabbling in dime-store psychology from time to time, and we can't resist this opportunity to examine the peculiar wiring that exists in Alice Martin's brain.

Our diagnosis of Martin's mindset, and the Troy King investigation, consists of two parts.

One, Martin is a power junkie, who realizes that her supplier--the Republican Party--is out of favor at the moment. Like a heroin addict who doesn't know where his next fix is coming from, Martin is feeling the first signs of withdrawal. She's sensing a little bit of what it's like to be a regular person, one whose job is about to be yanked out from under her--and she doesn't like that feeling. The Troy King investigation, we suspect, is designed to force somebody to appoint Martin to a position that she covets--a judgeship, a political appointment, something that will keep her gargantuan sense of self importance afloat.

The second part of our diagnosis involves the "D" word--desperation. I suspect Martin is a true believer in the Republican snake oil that Karl Rove has been pitching in the Deep South for about 20 years--and to the entire country for the past eight years or so.

Martin--and Bob Riley and Leura Canary, for that matter--probably had no doubt that Rove would usher in a Republican-dominated era that would last 35 years or so. This is what Rove's hero, President William McKinley, did in 1896, and true believers like Martin were counting on Rove to make history repeat itself.

With Republicans dominating far into the future, Martin probably saw herself becoming a federal judge, which is a lifetime appointment with virtually no scrutiny or oversight and . . . by golly, the future looked awfully darned bright.

But Martin and her fellow true believers didn't count on something: They never dreamed that Rove and his Gang That Couldn't Shoot Straight--George W. Bush, Dick Cheney, Don Rumsfeld--would be so utterly incompetent at governance that many Americans would recoil in horror. They never dreamed that two wars would go so badly, and the economy would implode to such a degree, that Americans would go running into the arms of a Democrat--a black one at that!

Alice Martin's worldview has been turned upside down, and her future doesn't look so glaringly bright at the moment. My guess is that the wiring in her devious little brain is about to short circuit. And that probably explains her irrational actions, such as a witch hunt against one of her own, Troy King.

King's plight hasn't exactly caused us to shed a tear. But we can't help but feel a hint of sorrow for a guy who seems to be caught in a Triangle of Death formed by three of Alabama's all-time lowlifes.

Wednesday, March 18, 2009

A sheet-metal mechanic who was fired after 25 years on the job has been awarded $500,000 in a discrimination case against a Birmingham aviation company.

Johnny Hawkins, a black man, had been an employee at Alabama Aircraft Industries (formerly Pemco Aviation Group) since 1980. He was fired in 2005 after it was alleged he intimidated and harassed a female employee.

A jury in U.S. District Court in Birmingham deliberated three hours before returning a verdict, which included $250,000 in punitive damages against Alabama Aircraft. Hawkins prevailed on charges of gender and race discrimination, but the jury found against him on a claim of retaliation.

The lawsuit grew from a workplace incident where a female coworker was supposed to be watching out for Hawkins while he worked in a confined space. The woman left for lunch without telling Hawkins, and he later confronted her and said that leaving him unattended was a serious safety violation.

Hawkins complained to the company's human-resources department, but the woman was not disciplined. Meanwhile, the woman complained that Hawkins had touched and intimidated her. That resulted in his termination.

John Saxon, Hawkins' attorney, showed that white men who had admittedly touched or harassed coworkers either got light discipline or none at all.

"Johnny Hawkins was a 25-year veteran of Pemco who tapped a female employee on the shoulder to get her attention to tell her she left him unattended in a confined space, an OSHA violation," Saxon said. "For touching her, he was terminated. Yet white employees hit, grabbed or kicked black employees and received no or light discipline. Not only is that a double standard, it is also discrimination."

Hawkins' retaliation claim apparently was based on the fact that he had been a member of a 1998 class-action discrimination lawsuit against his employer. Based on my research of case law, the retaliation claim probably failed because of the considerable time gap between the 1998 lawsuit and the 2005 termination.

Alabama Aircraft's attorney said the company has modified its policies and instituted annual diversity seminars in order to address issues raised by the Equal Employment Opportunity Commission (EEOC). The company probably will appeal the Hawkins verdict, attorney Doris Sewell said.

Saxon said the company still has a ways to go on the discrimination front. "Pemco has a checkered past," he said. "They have problems out there."

Tuesday, March 17, 2009

Was last week's massacre in south Alabama a tragedy that could not have been foreseen? Was it a case of an unstable individual "snapping" in an unpredictable fashion.

Absolutely not, says an expert on workplace violence. In fact, Mark Ames says the rampage that left 11 people dead was the predictable result of workplace policies that for almost 30 years have favored managers and investors over workers and wage earners.

Michael McLendon, the gunman who killed 10 people in three small south-Alabama towns before committing suicide, was one such worker. The public should not be surprised when people like McLendon strike back, Ames says. They've been doing it consistently for 20-plus years:

The killing spree in Alabama fits a well-worn pattern of workplace-driven massacres that we've seen since the "going postal" phenomenon exploded in the middle of the Reagan revolution.

In spite of the fact that these killings have gone on unabated for over 20 years, most of the country doesn't want to know why they're happening--least of all the people in power.

If we study the motive for Michael McLendon's shooting rampage Tuesday, which left 11 bodies across three towns in southern Alabama, and we look at the bizarre way that the causes of the shooting are being hushed up, you begin to understand why this uniquely-Reaganomics-inspired crime started in the United States, and continues to plague us.

Ames notes the curious actions of investigators in the Alabama case. Last Wednesday night, officials announced they had discovered the motive and would announce it on Thursday morning. But then something strange happened, Ames reports:

Alabama investigators completely reversed themselves: They were now claiming there was no way to find out the motive for the killings, and in fact, no motive ever existed in the first place.

"There's probably never going to be a motive," Trooper Kevin Cook, a spokesman for the Alabama Department of Public Safety, said Thursday.Even the list that provided so many obvious clues as to what sparked the shooting is now no longer the "hit list" or list of people who had "done him wrong," but rather, "the kind of list you'd put on a magnet on the refrigerator door."

Just the day before, Cook discussed motive and pointed to a lawsuit that McLendon's mother had pending against Pilgrim's Pride, a large chicken-processing company. But on Thursday, officials abruptly closed the investigation and sent almost the entire team home, Ames reports:

This raises a new question: What was it about McLendon's motive that officials wanted hushed? Or better yet: What did Pilgrim's Pride do that could have incited a man described by all as nice, quiet and respectful to unleash a bloody killing spree?

Ames compares McLendon to Joe Wesbecker, who worked at a printing company in Louisville, Kentucky, in the late 1980s. Both men were relentlessly harassed in the workplace, even acquiring the same nickname--"Doughboy." Wesbecker was locked in an ongoing labor dispute with his company and finally cracked on September 14, 1989, unleashing America's first massacre in a private workplace.

As for McLendon, he worked two years at Pilgrim's Pride. And here's how Ames describes the company in recent times:

In 2006, Pilgrim's Pride, then the second-largest chicken processor in the world, made a huge gamble that will seem familiar to anyone who's been following the financial crash: the company borrowed hundreds of millions of dollars, leveraging itself well beyond its means, in order to acquire a rival company and become the nation's No. 1 chicken processor, slaughtering 45 million chickens per week.

That might have given the executives a nice, big hard-on, but it also meant they would have to come up with more money to pay for all that debt. So the company did do what every post-Reagan company has done and gotten away with: They made the workforce pay for the executives' mistakes. That meant squeezing them for more work for less pay, or in Pilgrim's case, more work for no pay: In August 2007, the U.S. Department of Labor filed a lawsuit against Pilgrim's Pride accusing them of grossly undercompensating their employees.

This all hit McLendon in a personal way:

In 2006, the year of the acquisition, McLendon and his mother filed lawsuits and claims against the Pilgrim's Pride plant in Enterprise, Ala., charging the company with illegally denying them pay for the time it takes for workers to get suited up for the dangerous factory lines, and the time to take the protective gear off. Pilgrim's Pride had decided to stop classifying that time at the job as "work," now that they had a bunch of Wall Street bondholders to pay off. Other lawsuits also allege that the company forced workers to work overtime but only paid them regular hourly wages.

Pilgrim's Pride went on to declare "voluntary bankruptcy," placing the company in a strong position to fight all the lawsuits against it.

Then one week before the massacre, Pilgrim's Pride suspended McLendon's mother, 52-year-old Lisa McLendon, from her job. What was she suspended for? Here's how Ames describes it:

This is where the corporate sadism gets surreal: According to one report, she was suspended for overstating her work hours on her time card. In other words, given her lawsuit (now no longer such a threat to Pilgrim's while it is "restructuring" under American courts), she very likely decided she couldn't wait for the courts anymore and decided to clock in her time spent putting on and taking off the required protective gear.

Were the actions by Pilgrim's Pride legal? Nope. Is it likely the company cared? Nope:

Suspending her in such a case would be a classic example of illegal corporate retribution against a worker with a labor dispute--but what can a small-town Alabama hick do, with so little money and only so much resources, against a many-headed corporate beast like Pilgrim's Pride? The fact that Michael McLendon had the names of so many lawyers written down on lists in a spiral notebook shows that he tried going the legal route, but I mean, really, who's fooling whom? You think a small-town Alabama chicken-plucker has a chance in hell of fighting these oligarchs in the courts?

Ames provides important perspective on the tragic story of Michael McLendon:

So now we can go back to the question of motive, a question that Alabama investigators are running away from: rapacious corporations that cheat their workers and plunder the company wealth, a systematic bullying that extends all the way down to the way workers treat each other, and the sadism in the way they treat the chickens. It's a snapshot of a vicious law-of-the-jungle world, and yet it's just plain flat reality for most Americans.

Put in this context, McLendon seems a lot less like a maniac, and more like a victim of maniacs, who finally snapped and lashed out--killing many of the "wrong" people, although judging by his list and what authorities had said earlier, he had plans to kill the right people, too.

Monday, March 16, 2009

Why does President Barack Obama continue to embrace many Bush Administration policies related to justice and the war on terrorism? It's probably because Obama's White House counsel has myriad conflicts related to the Bush administration, says an Alabama lawyer who played a pivotal role as whistleblower in the Don Siegelman case.

The most recent curious move by Obama officials came when the Department of Justice filed a brief renewing the government's motion to dismiss Rasul v. Rumsfeld, in which plaintiffs allege that former Bush defense secretary Donald Rumsfeld was responsible for their torture.

How could this happen? How could the president of "hope" and "change" agree on important issues with George W. Bush? Alabama attorney Jill Simpson points a finger at White House Counsel Greg Craig.

In the days leading up to her testimony before a Congressional committee about the Siegelman case, Simpson had extensive interactions with Craig. He expressed interest in representing her but wound up declining, citing a conflict involving U.S. Senator Richard Shelby (R-AL). Simpson has since learned of Craig's connections to Karl Rove and expressed her concerns that Craig might have taken privileged information gleaned from her and shared it with Rove or others.

Craig played a central role in negotiations that resulted in Rove being allowed to provide testimony to the U.S. House Judiciary Committee in a non-public setting. Now, Simpson says, Craig appears to be helping to provide cover for Rumsfeld.

Why? It could be because Rumsfeld is represented by Craig's former firm, Williams & Connolly. In fact, Simpson says, Rumsfeld, Rove, Dick Cheney, and George W. Bush all are represented by Williams & Connolly.

"I think (this) knowledge will help everyone understand why we are not moving away from the Bush agenda on torture and punishing those guilty of war crimes . . . ," Simpson says. "After you realize (the Williams & Connolly connections), I think you will understand why the DOJ and the White House are siding with these folks in the torture cases, when clearly the law says something completely different."

"Something must be done, and I hope every American becomes aware of this matter. We are losing our world standing over our support of torture, and Obama promised to do the right thing. But (recent information) coming out of the White House suggests he has made a U turn on his promises.

"If Craig is encouraging Obama to side with his old firm's clients, then President Obama must fire Greg Craig."

Craig's influence does not stop with Obama, Simpson says. It might extend to Attorney General Eric Holder.

"Mr. Holder has also been a client of Williams & Connolly and may be listening to Greg Craig as well.

"It is amazing to me that a lawyer from a firm that represents President George W. Bush, Dick Cheney, Karl Rove, and Donald Rumsfeld would ever be picked to be the chief legal counsel for President Obama, a Democrat.

"I have to wonder about the vetting, but then again the press has said that somehow Greg Craig was in charge of that. I just wonder if President Obama had anyone vet the vetter when he selected Greg Craig."

Sunday, March 15, 2009

A West Virginia case currently before the U.S. Supreme Court asks this fundamental question: Is a person's right to due process violated when he appears in court before a judge who has benefitted from the financial backing of the opposing party?

Put more bluntly, do we have a right to expect that the judge handling our case isn't "bought and paid for" by the other side?

You might think the US of A is beyond such questions in 2009. But you would be wrong. Hugh Caperton, owner of Harman Mining in West Virginia, knows it. And I know it, too.

Our cases involved different issues and vastly different sums of money, but Caperton and I have one thing in common: We've both heard tales of interesting trips judges take on their vacations.

My case involved several thousand dollars, and Caperton's involved tens of millions of dollars. But I've walked in Caperton's shoes. And we both have learned a hard fact about American life: Corrupt judges violate due-process rights all the time. Oral arguments in Caperton v. Massey indicate that Antonin Scalia and his conservative brethren on the U.S. Supreme Court want to keep it that way.

The Washington Post and other mainstream press outlets have done a solid job of reporting the issues Hugh Caperton faced. My case has received considerably less press attention, and the careful reader might ask, "Hey Schnauzer, how did you get screwed?"

What about those interesting vacations that judges take? In West Virginia, the state supreme court overturned a $50-million verdict in favor of Caperton and Harman Mining. Not long after that, pictures surfaced of one of the justices vacationing in the French Riviera with the CEO of . . . Massey Coal. Curiously, the justice had voted against Harman and for Massey. Gee, can't imagine why he would do that.

Sources tell Legal Schnauzer that similar antics take place in Shelby County, Alabama, where my case originated before circuit judges J. Michael Joiner and G. Dan Reeves. Our sources say certain "local counsel" in Shelby County take the judges on excursions to Alaska--and the attorneys who foot the bill for these ventures in the wild tend to do quite well before the judges.

Imagine that!

In fact, one attorney based in Jefferson County (where Birmingham is located) said he had an estate-related case coming up in Shelby County against one of the lawyers who paid for the Alaska trip. "They brought a baseless case against my clients, but I don't know how I'm going to win it because the other lawyer takes the judges to Alaska."

As for the case in West Virginia, the attorney for Massey Coal used oral argument before the U.S. Supreme Court to fill the air with high-minded rhetoric. He said our system is built on the "presumption" that judges are impartial.

But there is a huge gap between that presumption and real life in America's courtrooms.

Here's how Caperton's attorney, Theodore Olson, put it:

"The thing I ask people is: 'If you had an important case coming up and your opponent gave $3 million to elect the judge who was going to decide it, would you think that was fair?'" Olson said. "I haven't met a person yet who thinks that's fair." Olson isn't likely to ever meet anyone who thinks that is fair. But don't be surprised if our current Supreme Court leaves such a flawed system in place.

Friday, March 13, 2009

In responding to reports that he is the focus of a federal grand-jury investigation, Alabama Attorney General Troy King surely meant only to defend himself and perhaps send a message that he is not overly concerned.

But King inadvertently sent a different kind of message, becoming the most high-profile Southern Republican to acknowledge that maybe justice has not been so blind under Bush-appointed prosecutors.

King is a gold-plated Republican, and the political world in Alabama remains abuzz over the motivations behind the grand-jury probe. King was appointed by Governor Bob Riley and has worked closely with U.S. Attorneys Alice Martin and Leura Canary. But now King finds himself in the same cross hairs that, for the past eight years, have almost exclusively been trained on Democrats, such as Don Siegelman and Sue Schmitz.

In an updated article by reporter Bob Gambacurta, posted today on the Web site of the Montgomery Independent, King was asked about the possibility that the investigation was driven by politics.

King clearly is familiar with how his fellow Alabama Republicans operate. So did he discount the idea that they could be motivated by politics? Not exactly:

"Obviously you talked to people and you know a lot more about what may or may not be going on that I do," King told the Independent. "But I certainly hope it's not political. If it's not political, then I don't guess I have any reason to be concerned."

King easily could have said something like, "I know Alice Martin, Leura Canary, and Bob Riley well, and I have the utmost respect for their professionalism. I am confident that I will be cleared of any wrongdoing. But I also know that my Republican colleagues will consider only the facts and the law involved. No way politics is involved in this."

That's not quite what our guy Troy said. In fact, in a general way, King seems to be agreeing with fellow Alabama Republican Jill Simpson, the whistleblower in the Siegelman case. Simpson has sworn under oath that the federal justice apparatus in Alabama has been riven with political motivations under the Bush administration.

Now you have another GOP insider pretty much saying, "Yep, she might have been right about that all along."

Of course, King was more than happy to stay silent as long as Democrats were the targets. But now that his conservative fanny is the target, he seems to be saying, "You know, this political prosecution business isn't as much fun as it used to be. I think we need to take a look at it."

Way to show some political courage, Troy.

On the surface, Gambacurta reports, the grand-jury investigation seems to be focusing on three areas: gambling, selective prosecutions, and conflict of interests.

Can you imagine Alice Martin accusing someone of conducting selective prosecutions? What a scream.

Gambacurta clearly suspects that issues other than law and order are in play. He notes that King has made his share of political enemies, including the governor who appointed him--and the governor's omnipresent son:

King was originally appointed Attorney General by Gov. Bob Riley in 2004, but King's perceived lack of loyalty to the governor is said to have angered Riley and his influential son, Rob Riley. Recently, Riley formed a special anti-gambling task force to root-out illegal bingo operations in the state and left King and his staff out of the loop.

Montgomery businessman John W. Goff, another one-time Riley booster, became the subject of a federal investigation after he sued the governor and sought information about Riley's connections to Jack Abramoff and Mississippi Choctaw gaming money.

King has publicly disagreed with Riley on gambling issues, and now he is the subject of a federal investigation.

I'm starting to see a pattern here.

The King story has attracted national attention, with Raw Story's Muriel Kane reporting that a number of political bloggers were not surprised to learn of the investigation. Kane notes that rumors of unethical practices and sexual peccadilloes have swirled around King for some time.

The rumors surrounding one King staffer, 24-year-old John W. Godwin, have been particularly appetizing:

Last July, however, even more scandalous rumors began circulating, claiming that the religiously conservative and overtly homophobic King had been caught by his wife in bed with a male aide. These rumors were fueled in part by a Birmingham News article headed "AG King boosts top aides salaries," which reported:

"Not receiving raises has not been a problem for another King employee—24-year-old John W. Godwin. Godwin started working in the attorneys general office as an unpaid intern last summer, when he was a senior at Troy University. Shortly after arriv­ing in Kings office, Godwin was put on the payroll at $10 an hour. Over the next nine months, Godwin rapidly ascended the ladder. In July 2007, King appointed him as a special administrative assistant earning $39,456 a year. He completed his degree in broadcast journalism in December, and on March 27 was named to his current title of executive assistant, a job paying $57,504 annually, according to state records. . . .

For the next several days, rumors of King's impending resignation flew around the Internet. King refused to comment on the story either way and the rumors gradually died down. However, they were reignited in October, when it was reported that King was preparing to run for re-election as attorney general in 2010--rather than for governor, as had been anticipated--raised suspicions that his political prospects had been been damaged by the scandal.

What's the real motivation behind the King investigation? That remains unclear. But by tacitly admitting that the Bush Justice Department might conduct a political prosecution in Alabama, King is a Republican who has confirmed what many of us suspected all along.

Thursday, March 12, 2009

Your humble blogger appeared on the Paul Finebaum Radio Network yesterday afternoon to discuss the evolving story of a possible NCAA investigation of the men's basketball program at the University of Alabama at Birmingham (UAB).

You can hear the conversation by going to the Finebaum Web site, scrolling to the Daily Show Downloads for 3/11 and clicking on Hour No. 2.

On a personal note, Paul and I go back a long way. We've been friends for almost 30 years and worked together for 11 years at the late Birmingham Post-Herald. We joined forces on several big stories, including an award-winning piece on the recruitment of former University of Alabama basketball star Buck Johnson.

The public often sees the bombastic, critical side of Finebaum. But I know him as a nice guy and good friend. Heck, he even drove me home from the oral surgeon's office and checked in on me regularly after I had my wisdom teeth removed many years ago.

I had the pleasure of meeting Paul's late mother several times, and she was a real trip and a genuine character. Mrs. Finebaum was a voracious reader and had a keen mind and sharp wit, with a serious New York influence.

She also was a big sports fan and loved Gene Bartow, who led Memphis State to the NCAA Final Four and later would start the athletics program at UAB.

I can remember her fixing us lunch one day at the Finebaum home in Memphis and saying, "Rahjah, have some mustahd."

"No thanks, Mrs. Finebaum, I don't need any mustard."

"Rahjah, I said have some mustahd."

"Oh OK, on second thought, mustard sounds good," I said.

I had some mustard. And I enjoyed it.

I often hear people compare Finebaum to various talk-show hosts. But I know that the biggest influence on his career has been Gloria Finebaum. Listen closely to his show, and you can hear her influence in most every syllable.

For good measure, Finebaum played a major role in introducing me to the young woman who would become Mrs. Schnauzer.

The Bomber and the Schnauzer know how to work a story, and we're going to be working the UAB story in the coming days.

Wednesday, March 11, 2009

We've written several times recently about a variety of problems at the University of Alabama at Birmingham (UAB), my former employer.

Now it looks like the university's most high-profile endeavor--the men's basketball program--might be facing an NCAA investigation.

Paul Finebaum, a Birmingham-based journalist and talk-radio host, reports today that UAB is about to receive an official letter of inquiry regarding alleged academic fraud. I was a guest on the Finebaum Show today and discussed the developing UAB story. We will provide a link to that conversation shortly.

Sources have told Legal Schnauzer that the inquiry dates to the end of Coach Mike Anderson's tenure (he's now at Missouri) and the arrival of current coach Mike Davis. NCAA investigators reportedly have visited with one of Davis' close personal associates.

The day got off to a rough start for UAB with reports that an arrest warrant had been issued for former football standout Will Dunbar. One of the Blazers' leading tacklers in recent seasons, Dunbar is charged with failing to register as a sex offender. In 2004, Dunbar was convicted of aggravated sodomy and rape of a 16-year-old girl in Fulton County, Georgia.

UAB is best known for its academic medical center. But because of the nature of sports, nothing has spread the university's name like the successful men's basketball program started in 1978 by former UCLA Coach Gene Bartow.

The brewing problems in athletics are just the latest of several storms that have developed on the campus under the leadership of President Carol Garrison. Others include:

* Numerous human-resources problems, including a number of lawsuits involving veteran faculty and staff members;

* Rampant research fraud that, according to court documents, was mostly covered up by U.S. Attorney Alice Martin, a George W. Bush appointee;